Prudent Layperson Standard in Emergency Medicine Under Attack

In the history of the specialty of emergency medicine, there have been landmark pieces of legislation that have significantly changed the paradigm of how we practice. Perhaps the two most important have been EMTALA and the prudent layperson standard. EMTALA mandates the evaluation and stabilization of all patients who present to the emergency department, and the prudent layperson standard gives patients the protection to seek emergency care and provides hospitals and emergency physicians the assurance of payment for those services. While our obligation under EMTALA hasn’t lessened, the protection for patients and providers under the prudent layperson standard has come under increasing attack by government and private payers. Just like the fight to enact it 25 years ago, the need to protect the prudent layperson standard today is now a rallying point for the specialty of emergency medicine and the larger house of medicine.

History of Prudent Layperson

In 1986, EMTALA created a mandate that all patients be seen in the emergency department regardless of insurance status or ability to pay. Under EMTALA, hospitals could no longer deny people at least an initial evaluation and stabilizing treatment when they presented for care. Today, we understand why it was important to have EMTALA: to ensure that patients got treated fairly.

Although well-intentioned, EMTALA had a secondary and much more negative effect. Once health insurance companies realized that hospitals and emergency physicians were required by law to see all patients, the insurance companies, especially in the heyday of HMOs, began implementing policies that were harmful to patients and providers. Patients were required to get prior authorization approval before going to the emergency department. If, after an appropriate evaluation in the emergency department, the patient’s final diagnosis was felt to be “nonemergent” by the insurer, payments to the hospital and providers were retrospectively denied.

For several years, things were bad for patients and providers. Then, in 1992—according to Cal Chaney, former ACEP Director of State and Chapter Relations—Maryland emergency physician David S. Davis, MD, while pursuing his law degree, learned about the concept of “the prudent layperson” as it related to a consumer protection case. Under that precedent, if consumers used a product in a manner consistent with a prudent layperson, then they would be afforded protections if injured, even if they used it in a way that was not its original purpose. Dr. Davis contacted ACEP, and the movement to get the prudent layperson standard extended to ED patients was born. At the “twelfth hour” of the 1993 session, the Maryland General Assembly became the first state legislature to pass the prudent layperson standard for emergency department visits.

We know that the vast majority of Emergency Department patients are not prudent, which is why they end up there in the first place. This will be a difficult issue to find balance without requiring some level of personal responsibility on the part of patients.